Blacklisted in Florida

How a purge aimed at African-American voters in the Sunshine State helped the Jeb Bush team elect brother George

Editor's Note: In 1994, when he ran unsuccessfully for governor of Florida, Jeb Bush was asked what he would do for black people. "Probably nothing," Bush said. Thus began a years-long war between Bush and African Americans in the Sunshine State. Elected governor in 1998, Bush replaced affirmative action and minority set-aside programs with his One Florida Initiative. Blacks retaliated with a massive voter registration drive that threatened brother George W. Bush's chances of carrying Florida in the 2000 presidential election. The Bushes fought back in ways both subtle and blatant. John Lantigua, writing in The Nation, reports that 100,000 discarded votes--more than half the state's total--came from the four counties with the largest black populations. Why did that happen? Because they're the counties still stuck with the most punch-card voting machines--a form of discrimination the Bushes obviously did not try to fix. Despite huge gains in black voter registration, the Jeb Bush administration made no effort to increase staffing in black precincts. "The result was chaos at many polling places," Lantigua says, as voters who'd registered, but were somehow not on the precinct rolls, were turned away--despite their legal right to cast a provisional ballot. In the 2000 election, the black vote in Florida went up 300,000--from 10 percent of the statewide total in 1996 to 16 percent last year, according to exit polls. How much more should it have gone up? It's impossible to say, Lantigua thinks. But in an election decided by a few hundred votes, consider the impact of the most egregious Bush tactic of all: The purge.

After the 1997 Miami mayoral election, The Miami Herald discovered that 105 people had voted despite having felonies on their records and having never received clemency, making them ineligible under Florida law. The newspaper, in a series that helped overturn the election because of voter fraud, also revealed that of the total number of felons found on the county voter rolls, 71 percent were registered Democrats.

Within weeks, the Republican-controlled state legislature passed, and Gov. Jeb Bush signed, a sweeping voter fraud bill, despite an unprecedented effort by county elections supervisors to block it. The measure would unfairly thwart citizens from voting instead of encouraging voter turnout, said the supervisors, who actually conduct elections. Among other provisions, the bill called for strict enforcement of an old law--on the books since 1868 but lightly used in recent years--that took the vote away from all former felons who had not received clemency, no matter how long they had been out of prison and out of trouble.

Florida is one of only 14 states that do not automatically restore civil rights to former prisoners who have completed their sentence and parole, (North Carolina does restore their rights. See "Ex-Offenders Do Vote in N.C.") Florida's former prisoners must petition the Office of Executive Clemency for the restoration of their voting rights, and the final decision is made by the governor and three other members of the Cabinet, all of whom are partisan politicians. Before the voter fraud bill passed, a black Democratic legislator proposed another bill, to grant automatic restoration of rights after completion of sentence and parole, but it never made it out of committee.

That lawmaker had good reason to worry. Blacks would bear the brunt of this voter purge. While the population of Florida is about 15 percent black, the population of Florida prisons is 54 percent black. Once released and having completed parole, former prisoners have often found clemency difficult, if not impossible, to achieve. According to literature provided to former prisoners by the state, individuals can be denied the restoration of their civil rights for many reasons, including the possibility that they owe child support (which a father coming out of jail probably does), a history of drug or alcohol problems and even traffic offenses.

Although the state claims the process of applying for clemency was simplified somewhat in 2000, only 927 former prisoners regained their civil rights last year, less than one-half of 1 percent of the former prisoners who had finished their sentences and parole. Florida state Senator Kendrick Meek, who has a large number of blacks in his district, says that of 175 former prisoners whom he has helped apply for clemency in the past decade, only nine have been approved.

According to the Washington-based Sentencing Project--a nonprofit organization specializing in corrections issues--and Human Rights Watch, Florida is currently home to more disfranchised voters than any other state. The Florida Department of Law Enforcement admits that 187,455 former prisoners in Florida have been disfranchised because of felony convictions on their records. The state confirms that 17 percent of Florida's black voting-age males have been disfranchised. In addition, according to the U.S. Justice Department, Florida leads the nation in the rate at which juveniles are charged with felonies, meaning those youths lose the right to vote before they are ever able to exercise it.

"And every year the Florida legislature is trying to make more crimes felonies," says state Senator Daryl Jones of Miami. "Why? So they can eliminate more people from the voter rolls." In 2000, according to Jones, a bill was proposed by a GOP legislator that would have increased from 365 to 366 days the jail sentence for individuals who take two welfare checks after becoming employed. The bill was eventually defeated. "What does one more day accomplish?" asks Jones. "It makes it a felony, and you take one more person off the voter rolls. That's what. It's been going on in Tallahassee for years."

By April 1998, the laws and political will were in place in Florida to perform a definitive purge of voter rolls to remove people who had died, had been judged mentally unstable, had moved and were registered in more than one county or state--and, most significantly, had been convicted of a felony but had not had their rights restored by Florida's partisan clemency officials.

A list was produced by a Tallahassee firm, Professional Analytical Services and Systems, using state databases. The results proved to be full of errors. For one thing, the Florida Office of Executive Clemency had no database, so former prisoners who had won their rights back were often included on the list of felons barred from voting.

On August 18, 1998, then-director of the Division of Elections Ethel Baxter, citing confidentiality concerns, ordered county elections supervisors not to release that list to the press, which almost certainly would have discovered the gross number of errors long before Election Day, and especially the impact on the black vote.

In November of that year, the state contracted with Database Technologies (DBT) of Boca Raton, which has since merged with ChoicePoint of Atlanta. DBT eventually produced two lists--one in 1999 and the second in 2000--that included a total of 174,583 alleged felons. Later, when lists of individuals who had received clemency were produced, that number was reduced, although only by a small percentage. The majority of the people on those lists were African Americans.

DBT employees didn't always appreciate the seriousness of their task. One e-mail between two employees referred to the former prisoners they were enumerating as the "dirtbags of the nation."

When DBT started to receive complaints, sometimes directly from voters who unjustly had had their right to vote challenged, product manager Marlene Thorogood seemed surprised. "There are just some people that feel when you mess with their 'right to vote' your [sic] messing with their life," she said in an e-mail.

And complaints did come in. More than a year before Election Day 2000, it was clear the lists contained thousands of names of Florida citizens who had never been convicted of felonies--or of any crime, for that matter. In some instances, the concentration of errors was absurd. For example, only seven people work in the Monroe County elections supervisors' office in Key West. But one of those employees, along with the husband of another employee and the father of Supervisor Harry Sawyer, were all erroneously listed as having felony convictions. "And my father is a retired Sheriff's Department captain," said Sawyer.

The lists were also absurdly sloppy: Some conviction dates were in the future. Angry voters by the thousands eventually complained to county supervisors of elections, who in turn complained to Tallahassee.

The point man for the state in compiling those lists was Emmett "Bucky" Mitchell IV, an assistant general counsel to the Florida Division of Elections, who within a week of the November 2000 election was given a senior attorney's job in the state Department of Education. In an interview with The Nation, Mitchell claimed he had exercised restraint in producing the purge lists. "The division always had the policy to err on the side of caution," he insisted.

But reports from county supervisors, correspondence between state officials and DBT employees, and testimony before the Civil Rights Commission tell a completely different story.

By March 1999, four months after contracts had been signed, DBT officials already had doubts about the state's ground rules. According to testimony by ChoicePoint/DBT vice president George Bruder, a person could be included on the list if his or her name, date of birth and/or Social Security number closely approximated that of a known felon. In other words, in a state with 16 million people, where many individuals share approximate names and also dates of birth, exact matches were not necessary.

In March of 1999, Thorogood expressed her doubts about those guidelines in an e-mail to Mitchell: "Unfortunately, programming in this fashion may supply you with false positives," she said, referring to names of people who did not belong on the felons list. She added: "This seems to be the approach you would prefer to choose, rather than miss any positive true matches."

Mitchell made the state's position clear in his answer to Thorogood on March 23: "Obviously, we want to capture more names that possibly aren't matches and let the supervisors [of elections] make a final determination, rather than exclude certain matches altogether," Mitchell wrote. In other words, the lists were designed to include people who were not felons, some of whom eventually fell through the cracks and were unfairly purged.

When supervisors began to complain about errors, Bruder said his company told the Divison of Elections that they were caused by the loose parameters set by the search, but Mitchell ordered no substantial change in the parameters, despite recommendations by DBT. "After submitting them they were not acted on by the state," said James Lee, a spokesman for ChoicePoint/DBT.

In fact, the next year, as the presidential election approached, the state asked that the parameters be loosened, according to Lee. Instead of 90 percent of the letters in the name of a person on the purge list having to match with those of someone on the voting rolls, the standard was loosened to 80 percent.

Although such matches were often eliminated when Social Security numbers or other data were also checked, such information was not always available, and more innocent individuals were included on the felons list.

Florida state officials, moreover, were not content to include only former Florida prisoners on the purge list. They also asked DBT to use its national databases to provide the names of felons from other states who might have moved to Florida and registered.

But some of those ex-felons came from the 36 states that have automatic restoration of civil rights, including the right to vote. More than 2,000 such individuals were included. Following press and public attention to the situation after the election, the state quietly changed its policy [see Gregory Palast, "Florida's 'Disappeared Voters,'" The Nation, February 5].

In May 2000 the process went totally awry. Some 8,000 names, mostly those of former Texas prisoners who were included on a DBT list, turned out never to have been convicted of more than a misdemeanor. The new elections director, Clay Roberts, later claimed the error had been caught in time and that none of those individuals lost their rights. But Mitchell admitted that other lists of alleged felons supplied to DBT by the Florida Department of Law Enforcement also contained errors, among them the inclusion of many people convicted only of misdemeanors.

In time, an appeals process was instituted, but in some cases it required ordinary citizens to be fingerprinted in order to prove they weren't the felons they were accused of being. In the end, out of 4,847 people who appealed, 2,430 were judged not to be convicted felons. As U.S. Commission on Civil Rights attorney Bernard Quarterman put it during a hearing in Miami on February 16, "They were guilty until proven innocent."

Elections supervisors in the counties, who had never been consulted about how to assemble the purge lists, battled with the mandate from Tallahassee. "Our experience with the lists is that they are frequently erroneous," Leon County Elections Supervisor Ion Sancho testified before the Civil Rights Commission in Tallahassee. Sancho said he was sent one list with 690 names on it, but after detailed checking by his office only 33 people were sent letters asking them to prove their eligibility to vote.

In its assurances to the state before contracts were signed, DBT promised, on August 14, 1998, that the lists would be checked, including "telephonic verification of random records." But this procedure was later omitted from contracts, and the state never insisted that it be done.

In fact, during one meeting between Mitchell and county supervisors in 1999, Mitchell specifically told supervisors not to try to contact listed individuals by phone, but only by the legally required route of the mail.

Many would-be voters later said they had never received notification. "Mr. Mitchell said we shouldn't call people on the phone, we should send letters," said Linda Howell, supervisor for Madison County in north Florida. "The best and fastest way to check these matters was by phone--personal contact--but he didn't want that." She added, "We shouldn't have had to do any of this. Elections supervisors are not investigators, and we don't have investigators. It wasn't our responsibility at all."

In his interview with The Nation, Mitchell offered this rationale for the loose standards used in assembling the purge lists: "Just as some people might have been removed from the list who shouldn't have been, some voted who shouldn't have." In other words, because an ineligible person may have voted somewhere else, it was acceptable to deny a legitimate voter the right to vote.

Mitchell said the loose parameters employed to create the purge list were approved by former head of the Division of Elections Ethel Baxter, after consultation with Florida Secretary of State Katherine Harris. Neither Baxter nor Harris returned phone calls requesting comment.

T he lists targeted black voters in extremely disproportionate numbers. In Hillsborough County--which includes Tampa--where only 15 percent of voters are black, 54 percent of the names on the purge list were African Americans. In Miami-Dade, where blacks make up 20 percent of the population, a list of 5,762 people contained the names of 3,794 blacks, or 66 percent. In Leon County, which includes Tallahassee, the state capital, 29 percent of the people are black but 55 percent of the purge list names were African Americans.

In one Leon County case, the Rev. Willie David Whiting, a black pastor from Tallahassee, arrived at his polling place to find himself listed as a convicted felon; he was refused the right to vote despite never having spent a day in jail. He says he had never received notification of his disfranchisement.

It turned out that he had been confused with a Willie J. Whiting, whose birth date was two days away from his own, and was considered a match due to a "derived" or approximate name and birth date.

"I felt like I was slingshotted back into slavery," Whiting testified to the civil rights panel. He said he was forced to consider possible motives. "Does someone have a formula for stealing this election?" he says he asked himself.

The Division of Elections and DBT were also sharing their information, some of it false, with law enforcement agencies. Whiting said he was relieved he had not been stopped "by the wrong policeman" during the time he was incorrectly listed as a convicted felon. "Who knows what would have happened?"

A Jacksonville resident, Richard Haywood, whose one felony marijuana conviction in 1972 had been expunged from his record, suddenly found himself not only on a purge list, but also with the record of his conviction released by the state to a school to which he had applied for student aid.

"I complied with the law and my record was expunged," said Haywood. "What they did was violate the law by releasing that information, and they messed with my life."

Madison County Supervisor Howell agreed. "They were not taking their job seriously," she said, referring to state officials. "That could destroy a person's life."

It is impossible to know how many voters were unfairly kept away from the voting booth because of the purge. Votes not cast are not tallied. Some former prisoners who were notified they were on the purge lists expressed interest in applying for clemency and voting, but they were often faced with daunting amounts of paperwork. For example, if they had been convicted in a different county, they had to write away for certified copies of court records, some of them decades old, and then apply to Tallahassee. "Some of them had convictions in the 1940s and 1950s and had been voting for years," said Larry Roxby, deputy elections supervisor in Bay County.

Meanwhile, according to Roxby, the Office of Executive Clemency in Tallahassee had a backlog of six months to a year. "I'd say I had about 60 such people come to me over the past three years, and only about three of them ever got their clemency," said Roxby. "Seven or eight out of 10 were blacks." Other supervisors reported similar instances of former prisoners who had been active voters for years but who were discouraged by the suddenly enforced clemency process.

State law enforcement officials later said that based on past voting records, only about 10 percent of former prisoners might be expected to vote. In a highly contested election such as the one in 2000, that could be expected to increase. But even if one uses the state's own figures, out of 187,000 former prisoners who had completed parole but had not received clemency, close to 20,000 might have voted if they'd been permitted. State statisticians say, based on race and economic factors, that group could be expected to vote Democratic 75 percent of the time.

During testimony before the Civil Rights Commission on January 11, Jeb Bush swore that he had no knowledge of or involvement in the staging of elections in Florida. Bush passed the buck to Katherine Harris, who also denied direct involvement in the polling process. What is known is that $100,000 requested by county elections supervisors for voter education--which would have helped voters use the punch-card system and decipher confusing ballots--was deleted from the Division of Elections budget.

The Florida Elections Commission, a state body charged with investigating voting irregularities, reported to the Civil Rights Commission in January that it had done no investigating because no formal complaint had been received, despite the public clamor by blacks.

Although they deny they did anything wrong themselves, these Florida leaders have said they will fix what is wrong with the Florida electoral system. The NAACP, however, is not convinced. It has sued Harris, other Florida officials and the state, charging them with violating the Voting Rights Act and the 14th Amendment to the Constitution. The NAACP's suit demands that federal examiners oversee elections in specific counties in Florida for the next 10 years, including the next two presidential contests, so that another election isn't hijacked.